Judge David A. Rosen, Case 20GDCV01036 2022-08-05 Tentative Ruling

Judge: David A. Rosen, Case: 20GDCV01036, Date: 2022-08-05 Tentative Ruling

Case Number: 20GDCV01036 Hearing Date: August 5, 2022 Dept: E

Hearing Date: 08/05/2022 – 8:30am
Case No. 20GDCV01036
Trial Date: 11/14/2022
Case Name: ELIAS CABALLERO v. FCA US LLC

TENTATIVE RULING ON MOTION TO COMPEL COMPLIANCE

Moving Party: Plaintiff, Elias Caballero (“Plaintiff”)
Responding Party: Defendant, FCA US LLC (“Defendant”)

Proof of Service Timely Filed (CRC Rule 3.1300): ok
16/21 Court Days Lapsed (CCP 1005(b)): ok
Proper Address: ok

Oppo and Reply submitted.

Plaintiff correctly notes in its Reply that the Opposition is late. Plaintiff argues that the Opposition should not be considered because it failed to provide any sort of explanation for the untimeliness of its Opposition and deprived Plaintiff of its statutorily allowed time to review and prepare a Reply. Plaintiff also states that Defendant failed to include a CCP §473(b) declaration with its Opposition.

The Court will in its discretion consider the untimely Opposition.

RELIEF REQUESTED
Plaintiff moves for an order compelling Defendant to comply with the Court’s February 25, 2022, discovery order that compelled further responses and documents. However, Plaintiff also appears to be moving the Court for an Order compelling further responses to his RFP, per CCP Sec. 2031.310(c), but such a Motion is now untimely, per that code section (filed more than 45 days after the allegedly unsatisfactory responses), and Plaintiff’s current filing lacks a Separate Statement, which is required for a Motion to Compel Further Responses (C.R.C., Rule 3.1345(a)(3)).

Plaintiff requests monetary sanctions imposed against Defendant in the amount of $500 for each day that Defendant does not make full and complete production of the Court-ordered documents after a ten-day compliance period.

Plaintiff makes the instant motion pursuant to CCP §2031.310 on the grounds that Defendant violated the Court’s order.

BACKGROUND
This is a lemon law action involving an alleged defective 2018 Jeep Cherokee which exhibits defects in the powertrain and electrical system.

On February 25, 2022, the Court granted Plaintiff’s motion to compel further responses and production of documents to request for production numbers 16, 19, 20, 21, 22, 25, 26, and 27 and denied numbers 39 and 51.

LEGAL STANDARD
Under CCP §2031.210(a), the party to whom a demand for inspection, copying, testing, or sampling has been directed shall respond separately to each item or category of item by any of the following:

(1) A statement that the party will comply with the particular demand for inspection, copying, testing, or sampling by the date set for the inspection, copying, testing, or sampling pursuant to paragraph (2) of subdivision (c) of Section 2031.030 and any related activities.

(2) A representation that the party lacks the ability to comply with the demand for inspection, copying, testing, or sampling of a particular item or category of item.

(3) An objection to the particular demand for inspection, copying, testing, or sampling.

A representation of inability to comply with the particular demand for inspection, copying, testing, or sampling shall affirm that a diligent search and a reasonable inquiry has been made in an effort to comply with that demand. This statement shall also specify whether the inability to comply is because the particular item or category has never existed, has been destroyed, has been lost, misplaced, or stolen, or has never been, or is no longer, in the possession, custody, or control of the responding party. The statement shall set forth the name and address of any natural person or organization known or believed by that party to have possession, custody, or control of that item or category of item. (CCP §2031.230.)

ANALYSIS/TENTATIVE RULING
On February 25, 2022, this Court ruled in pertinent part as follows:

Motion to compel further responses and production of documents to request for production Nos. 16, 19, 20, 21, 22, 25, 26, and 27 are GRANTED. Plaintiff has demonstrated good cause by showing the instant requests are relevant because they relate to Defendant’s understanding and awareness of customer complaints, repeat failures, and suggested repair procedures for the subject Powertrain Defect and Electrical Defect in other 2018 Jeep Cherokee vehicles. Defendant must provide code-compliant responses and produce the documents responsive to the stated requests within 25 days hereof. Motion to compel further responses to request for production Nos. 39 and 51 are DENIED without prejudice as Plaintiff did not meet and confer with respect to requests 39 and 51.

As bolded by the Court, part of the Court’s ruling was to provide code-compliant responses.

Defendant has not provided code-compliant responses.

16, 19, 20, 21, 25, 26
As an example of Defendant’s responses for 16, 19, 20, 21, 25, and 26, the Court will provide what Defendant’s supplemental response was to RPD 16 below:

RPD 16

All DOCUMENTS, including but not limited to electronically stored information and electronic mails, concerning or relating to any internal analysis or investigation by YOU or on YOUR behalf regarding the POWERTRAIN DEFECT in vehicles of the same year, make, and model as the SUBJECT VEHICLE. [This request shall be interpreted to include, but not be limited to, any such investigation to determine the root cause of such POWERTRAIN DEFECT, any such investigation to design a permanent repair procedure for such POWERTRAIN DEFECT, any such investigation into the failure rates of parts associated with such POWERTRAIN DEFECT, any cost analysis for implementing proposed repair procedures, any savings analysis not implementing a proposed repair procedures, etc.]

Defendant’s supplemental response to RPD 16 was:

Following a diligent search and reasonable inquiry, FCA US will comply in full with this request and produce all responsive documents, subject to protective order, within its possession, custody, and control, namely, documents relating to Technical Service Bulletins, Recalls, or Special Service Messages concerning the conditions outlined in Plaintiff’s “POWERTRAIN DEFECT” definition verified by the repair orders, for vehicles of the same year, make, and model as the Subject Vehicle that could be applicable to the Subject Vehicle. Specifically, FCA US will produce TSB 21-044-18, TSB 08-054-18 REV. A, TSB - 08-054-18 and all available back up documents for these TSBs.

Additionally, FCA US has conducted a diligent search and reasonable inquiry and no recalls or internal investigations have been conducted related to the terms identified in Plaintiff’s “POWERTRAIN DEFECT” definition and therefore no additional documents, including emails, exist or have ever existed responsive to this request.

To conduct the above searches, FCA US utilized the terms identified in Plaintiff’s “POWERTRAIN DEFECT” definition and queried the following databases where responsive information is most likely to be found: Carfax, DAPIS, DealerConnect, QNA (Quality Narrative Analyzer), Global Issue Management (GIM), Global Service Diagnostics (JIRA Server), WIS (Warranty Information Systems), and Global Claims System (GCS).

FCA US states no documents have been withheld in response to this request.

As seen in the supplemental response, Defendant has not provided code-compliant responses because Defendant has qualified its supplemental response that it will comply in full in several aspects. First, Defendant qualifies its response that it will comply in full by stating Defendant will comply subject to a protective order. Second, it qualifies what it will produce by stating, “…namely, documents relating to…” Third, Defendant qualifies its response by stating, “…where information is most likely to be found…”

Since Defendant’s supplemental responses to 16, 19, 20, 21, 25, 26 all had some sort of condition/qualification attached to its response, Defendant did not provide code compliant responses.

22 & 27
RPD 22

All DOCUMENTS, including but not limited to electronically stored information and

electronic mails, concerning or relating to any internal analysis or investigation by YOU or on

YOUR behalf regarding the ELECTRICAL DEFECT in vehicles of the same year, make, and

model as the SUBJECT VEHICLE. [This request shall be interpreted to include, but not be limited to, any such investigation to determine the root cause of such ELECTRICAL DEFECT, any such investigation to design a permanent repair procedure for such ELECTRICAL DEFECT, any such investigation into the failure rates of parts associated with such Page 8 ELECTRICAL DEFECT, any cost analysis for implementing a proposed repair procedures, any savings analysis not implementing a proposed repair procedures, etc.]

Defendant’s supplemental response to RPD 22 was:

FCA US is unable to comply with this request. FCA US has conducted a diligent search and reasonable inquiry for any recalls, Technical Service Bulletins (“TSBs”,) Customer Satisfaction Notifications, or internal investigations applicable to the Subject Vehicle and concerning the conditions outlined in Plaintiff’s “ELECTRICAL DEFECT” definition and located none. As such, no documents currently exist, or have ever existed, responsive to this request.

To conduct the above searches, FCA US utilized the terms identified in Plaintiff’s “ELECTRICAL DEFECT” definition and queried the following databases where responsive information is most likely to be found: Carfax, DAPIS, DealerConnect, QNA (Quality Narrative Analyzer), Global Issue Management (GIM), Global Service Diagnostics (JIRA Server), WIS (Warranty Information Systems), and Global Claims System (GCS).

FCA US states no documents have been withheld in response to this request.

RPD 27
All DOCUMENTS, including but not limited to electronically stored information and electronic mails, concerning or relating to any fixes for the ELECTRICAL DEFECT in vehicles of the same year, make, and model as the SUBJECT VEHICLE.

Defendant’s supplemental response to RPD 27 was:

To the extent this request seeks information related to Plaintiff’s “ELECTRICAL DEFECT” definition, FCA US is unable to comply with this request. FCA US conducted a diligent search and reasonable inquiry for any recalls, Technical Service Bulletins, Customer Satisfaction Notifications, or internal investigations applicable to the Subject Vehicle and concerning conditions outlined in Plaintiff’s “ELECTRICAL DEFECT” definition and located none. Absent an applicable recall, TSB, CSN, or internal investigation, no executive summary documents currently exist, or have ever existed, responsive to this request.

FCA US states no documents have been withheld in response to this request.

Defendant’s responses here also have qualifications/conditions attached to its responses. For example, the requests request “all documents,” however, Defendant states it is unable to comply after a diligent search and reasonable inquiry but limits what it searched to “recalls, Technical Service Bulletins…” The request asked for “All Documents.”

Document Production

Moving party/Plaintiff argues, in part, that:

“FCA’s entire supplemental document production served on March 22, 2022 is comprised of the following: (1) customer complaints, (2) Bates-stamped document FCA SUPP 000155 titled “U1465-00 IMPLAUSIBLE DRIVER SHIFT REQUEST SIGNAL RECEIVED” with a hyperlink (though the documents to the hyperlink were not produced), (3) twelve documents titled “Failure Rates” that reflect vehicle sales (and not the actual failure rates of vehicles due to the subject defect), (4) three pages of root cause analysis reports (though no emails or other memos between the engineers identified on the reports), (5) Bates stamped document FCA SUPP 000188 which lists numerous attachments (though none of the attachments were produced), (6) customer contact logs, (7) individual TSB 08-054-18 REV A (though no backup documents), (8) individual TSB 08-054-18 (though no backup documents), (9) TSB 21-044-18 (though no backup documents), and (10) customer warranty claims.

Through Plaintiff’s research and not through production by Defendant, Plaintiff has uncovered Technical Service Bulletins (“TSBs”) 08-103-18 and 08-058-18. Such TSBs do not exist in a vacuum, these documents evidencing repair procedures were creating from internal analysis, emails, and investigation. FCA has withheld these individual TSBs from production, as well as the Court-compelled internal investigation documents that led to the creation of the same. FCA has also withheld such backup documents relating to the TSBs nos. 08-054-18 REV A and TSB 21-044-18 that it did produce.

FCA produced a scant three pages of such root cause analysis documents Batesstamped FCA SUPP 000182, 000184, and 000186. However, FCA has failed to produce any emails, charts, or other documents evidencing the data used by FCA’s engineers to compile the root cause analysis memos in the first place. Bates-stamped document FCA SUPP 000182 identifies as “Issue Resolver” the following individuals: Arcori Mark, Cruz Avila Yura Benjamin. Bates-stamped document FCA SUPP 000186 identifies as “Issue Resolver” the following individual: Liu Lixin. FCA failed to produce any emails or other documents detailing how these individuals came to the “resolution” reflected in these three pages of root cause analysis documents.

FCA is also withholding documents from the hyperlink in FCA SUPP 000155 titled “U1465-00 IMPLAUSIBLE DRIVER SHIFT REQUEST SIGNAL RECEIVED,” failure rate charts that actually reflect failure rates of vehicles related to the subject defects, the attachments to Bates-stamped document FCA SUPP 000188.

As evidenced by even cursory review of the partial documents FCA did produce, FCA is withholding the bulk of the Court-compelled internal investigation documents. This is the third instance in which Defendant has violated the Court’s February 25, 2022, Order.

However, the Court cannot evaluate the sufficiency of Defendant’s document production as Movant’s position is not clear with respect to which documents go with each request, as there is no Separate Statement. However, with some examples, such as number (2), “Bates-stamped document FCA SUPP 000155 titled “U1465-00 IMPLAUSIBLE DRIVER SHIFT REQUEST SIGNAL RECEIVED” with a hyperlink (though the documents to the hyperlink were not produced)” Defendant’s production is insufficient as the provided hyperlink isn’t operable.

Thus, Defendant has failed to comply with the Court’s 2/25/2022 Orders in that Defendant has provided an extensive word salad in lieu of code-compliant responses to Plaintiff’s pending RFP, and Defendant has failed to produce even the documents it claims to have produced, as well as failing to produce other documents properly requested without providing code-compliant explanations for their failures to produce.

TENTATIVE RULING:

Plaintiff’s Motion to Compel Compliance with the Court’s 2/25/2022 Orders is GRANTED, except that, to the extent Plaintiff’s Motion also seeks further production from Defendant, separately from and in addition to Defendant’s compliance with the 2/25/2022 Orders, Plaintiff’s Motion is denied as a result of Plaintiff’s non-compliance with CCP 2031.310(c) and C.R.C., Rule 3.1345(a)(3). Defendant is to serve code-compliant responses, as delineated hereinabove, as well as all discoverable documents requested in the applicable RFPs, without objection or obfuscation, within 20 days hereof.

SANCTIONS

Moving party requests that the Court impose monetary sanctions of $500 per day for each day after the ten-day compliance period that Defendant does not comply with the Court’s Discovery Order. However, while Plaintiff requested these sanctions in its motion, this request was neither noted nor supported in the declaration of Plaintiff. Moreover, Plaintiff has failed to provide a clear explication, specifically as to which RFP’s Defendant has failed to properly produce documents.

Except as provided in subdivision (j), the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel further response to a demand, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. (CCP §2031.310(h).)

Except as provided in subdivision (j), if a party fails to obey an order compelling further response, the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction under Chapter 7 (commencing with Section 2023.010). In lieu of, or in addition to, that sanction, the court may impose a monetary sanction under Chapter 7 (commencing with Section 2023.010). (CCP §2031.310(i).)]

The Court notes that both parties continue to abuse the discovery process and fail to comply with the spirit of the Discovery Act, each party in their own way. Thus, the Court awards no sanctions at this time.